United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2005 Decided July 22, 2005
No. 04-1126
SECRETARY OF LABOR, MINE SAFETY AND HEALTH
ADMINISTRATION,
PETITIONER
v.
SPARTAN MINING COMPANY AND
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION,
RESPONDENTS
On Petition for Review of an Order of the
Federal Mine Safety and Health Review Commission
Jerald S. Feingold, Attorney, Mine Safety & Health
Administration, argued the cause for petitioner. With him on the
briefs was W. Christian Schumann, Counsel.
James S. Crockett, Jr. argued the cause for respondent.
With him on the brief was David J. Hardy.
Before: EDWARDS, ROGERS, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: This case concerns dueling
interpretations of Department of Labor regulations that require
coal mine operators to examine their mines for hazardous
conditions before they send miners underground. Although in
this case the outcome of the duel is not particularly close, it
would not matter if it were. The standard of review that governs
interpretive dueling before this court compels us to defer to the
Secretary of Labor’s interpretation of her own regulations unless
it is plainly erroneous or inconsistent with the regulations.
Because the Secretary’s interpretation is neither, we grant her
petition to vacate a Federal Mine Safety and Health Review
Commission decision that adopted a conflicting construction.
I
Section 201 of the Federal Mine Safety and Health Act of
1977 (the “Mine Act”) directs the Secretary of Labor to issue
“improved mandatory health or safety standards for the
protection of life and prevention of injuries in coal or other
mines.” 30 U.S.C. § 811(a). Acting through the Mine Safety
and Health Administration (MSHA), see 29 U.S.C. § 557a, the
Secretary has promulgated a wide array of such standards, which
MSHA enforces by inspecting mines and issuing citations for
violations, see 30 U.S.C. § 814(a). A mine operator can contest
a citation before the Federal Mine Safety and Health Review
Commission (FMSHRC), an adjudicative agency independent
of the Department of Labor. See id. § 815(d). After a hearing,
FMSHRC can affirm, modify, or vacate the citation. See id.
Under the statutory scheme, however, the Commission is
required to accord deference to “‘the Secretary’s interpretations
of the law and regulations.’” Secretary of Labor v. Cannelton
Indus., Inc., 867 F.2d 1432, 1435 (D.C. Cir.1989) (quoting S.
REP . NO. 95-181, at 49 (1977)); see RAG Cumberland Res. LP
v. FMSHRC, 272 F.3d 590, 595 (D.C. Cir. 2001).
3
Cannelton Industries idled its Shadrick Mine on May 3,
2002. Cannelton Indus., Inc. v. Secretary of Labor, 24
FMSHRC 707, 707 (2002) (“ALJ Decision”). Because the
company contemplated reactivating the mine at a later date, it
needed to keep its electric pumps running to prevent the mine
from flooding. The mine’s electrical system, including a
network of trolley wires that ran throughout the mine, was kept
energized. On May 6, 2002, Cannelton began sending
“pumpers” -- miners who maintain and repair pumps -- into the
mine to work on the pumps. Id. at 708.
On May 15, 2002, a MSHA inspector issued Cannelton a
citation for violating 30 C.F.R. § 75.360(a)(1), a mandatory
safety standard that requires certified examiners to conduct a
“preshift examination” before a mine operator may send miners
underground. In particular, the citation charged that Cannelton
had failed to have examiners inspect the energized trolley wires
before the pumpers entered the mine. See Secretary of Labor v.
Cannelton Indus., Inc., 26 FMSHRC 146, 148 (2004)
(“FMSHRC Decision”). The company contested the citation
before a FMSHRC administrative law judge (ALJ), who vacated
the citation on the ground that the “pumpers’ exception” to the
preshift examination requirement, 30 C.F.R. § 75.360(a)(2),
rendered such an examination unnecessary. See ALJ Decision,
24 FMSHRC at 709-10. On the Secretary’s petition for review,
the Commission upheld the ALJ’s determination. See FMSHRC
Decision, 26 FMSHRC at 150-54. The Secretary then petitioned
for review by this court.
In September 2004, Cannelton’s parent company was the
subject of a bankruptcy order, pursuant to which the parent of
Spartan Mining Company purchased Cannelton’s assets. See
Pet’r Br. at 35-38. Spartan now owns the Shadrick mine. See
Resp’t Br. at 5. On January 12, 2005, we granted Spartan’s
unopposed motion to substitute itself for Cannelton as
4
respondent.1
II
It is well-settled that this court must defer to the Secretary’s
interpretation of a MSHA standard as long as that interpretation
is not “plainly erroneous or inconsistent with the regulation.”
Akzo Nobel Salt, Inc. v. FMSHRC, 212 F.3d 1301, 1303 (D.C.
Cir. 2000) (quoting Thomas Jefferson University v. Shalala, 512
U.S. 504, 512 (1994)); see Secretary of Labor v. Excel Mining,
LLC, 334 F.3d 1, 6 (D.C. Cir. 2003). It is equally well-settled
that we owe the Secretary this deference even if FMSHRC
interprets the standard differently. See id.; Akzo Nobel Salt, 212
F.3d at 1303; Energy W. Mining Co. v. FMSHRC, 40 F.3d 457,
462-63 (D.C. Cir. 1994); Cannelton Indus., 867 F.2d at 1435.
The regulations at issue in this case are contained in
subsections (a) and (b) of 30 C.F.R. § 75.360. The preshift
examination requirement is set forth in paragraph (a)(1), which
states:
Except as provided in paragraph (a)(2) of this section,
a certified person designated by the operator must
make a preshift examination within 3 hours preceding
the beginning of any 8-hour interval during which any
person is scheduled to work or travel underground. No
person other than certified examiners may enter or
remain in any underground area unless a preshift
1
We agree with the parties that Cannelton’s inadvertent payment
of the $259 fine imposed by the contested citation did not moot this
case. As the Secretary observes, FMSHRC precedent indicates that if
Spartan prevails in this proceeding, the company will be able to
recover the money paid to the Secretary. See, e.g., Secretary of Labor
v. Phelps Dodge Sierrita, Inc., 24 FMSHRC 661, 662 (2002).
5
examination has been completed for the established 8-
hour interval.
30 C.F.R. § 75.360(a)(1) (emphasis added). The substance of
the required preshift examination is contained in subsection (b),
which provides in relevant part:
The person conducting the preshift examination shall
examine for hazardous conditions . . . at the following
locations:
(1) Roadways, travelways and track haulageways
where persons are scheduled . . . to work or travel
during the oncoming shift.
....
(3) Working sections and areas where mechanized
mining equipment is being installed or removed, if
anyone is scheduled to work on the section or in the
area during the oncoming shift.
....
(7) Areas where trolley wires or trolley feeder
wires are to be or will remain energized during the
oncoming shift.
Id. § 75.360(b). Finally, the pumpers’ exception -- referenced
by the phrase in paragraph (a)(1) italicized above -- is set forth
in paragraph (a)(2):
Preshift examinations of areas where pumpers are
scheduled to work or travel shall not be required prior
to the pumper entering the areas if the pumper is a
certified person and the pumper conducts an
examination for hazardous conditions . . . where the
pumper works or travels. The examination of the area
must be completed before the pumper performs any
other work.
6
Id. § 75.360(a)(2).
The Secretary interprets these interconnected provisions as
follows. Paragraph (a)(1) requires certified persons to conduct
a preshift examination before anyone else may enter a mine.
Subsection (b) describes the specific areas of the mine in which
this examination must be conducted. These include certain
areas, such as “roadways” and sections where “equipment is
being installed,” id. § 75.360(b)(1), (b)(3), that must be
examined only if persons are scheduled to work or travel there.
They also include other areas, such as those “where trolley wires
or trolley feeder wires . . . remain energized,” id. § 75.360(b)(7),
that must be examined even if no one is scheduled to work or
travel there. Compare id. (not containing a “scheduled to work”
caveat), with, e.g., id. § 75.360(b)(1), (3), (4), (5), (6) (all
containing the caveat). Finally, the introductory clause of
paragraph (a)(1) -- “[e]xcept as provided in paragraph (a)(2)” --
directs the reader to the sole exception to this preshift
examination requirement. That exception, which permits
pumpers to conduct their own examinations, applies only in
“areas where pumpers are scheduled to work or travel.” Id.
It is undisputed that Cannelton’s pumpers properly
conducted all required examinations of the areas where they
worked or traveled, but that other areas went unexamined. In
particular, no one examined areas where trolley wires remained
energized, as subsection (b)(7) requires for preshift
examinations. Spartan offers a series of reasons -- each of
which FMSHRC accepted -- for reading § 75.360 to include the
trolley wire areas within the pumpers’ exception.
First, Spartan contends that the opening clause of paragraph
(a)(1) -- “[e]xcept as provided in paragraph (a)(2)” -- means that
the pumpers’ exception is a complete exemption from the
preshift examination requirement, and thus eliminates the
7
obligation to examine non-work areas like those where
energized trolley wires are found. The plain language of
paragraphs (a)(1) and (a)(2), however, gives the Secretary the
better of this argument. The opening clause creates an exception
only “as provided in” paragraph (a)(2), and that paragraph does
not dispense with the preshift examination requirement
altogether. To the contrary, it permits a pumpers’ examination
to substitute for a preshift examination only in “areas where
pumpers are scheduled to work or travel.” Id. § 75.360(a)(2).
Because the preshift examination requirement otherwise remains
applicable, energized trolley wires must be examined before
pumpers may enter a mine. See id. § 75.360(b)(7).
Second, Spartan notes paragraph (a)(1)’s declaration that
“[n]o person other than certified examiners may enter or remain
in any underground area unless a preshift examination has been
completed.” Id. § 75.360(a)(1) (emphasis added). Reading this
as permitting “certified examiners” to enter without a preshift
examination, and further noting that the pumpers’ exception
applies only “if the pumper is a certified person,” id. §
75.360(a)(2), Spartan concludes that no preshift examination is
required before a (certified) pumper begins his or her work.
The Secretary disagrees. In her view, the quoted sentence
-- which comes immediately after the sentence that imposes the
preshift examination requirement -- merely means that a
certified examiner may enter the mine before a preshift
examination in order to conduct that examination. The quoted
sentence thus serves an important purpose: it avoids the Catch-
22 that would result if an examiner could not enter an area to
conduct a preshift examination until an examiner had conducted
such an examination. Spartan’s reading of the sentence, by
contrast, would render the pumpers’ exception superfluous. If
paragraph (a)(1) wholly exempted pumpers from the preshift
examination requirement, there would be no need for the
8
pumpers’ exception of paragraph (a)(2). The Secretary’s
contrary reading is thus perfectly reasonable.
Next, Spartan turns for support to the Federal Register
preamble that accompanied the 1996 revision of § 75.360.
“While this issue is not expressly resolved by the preamble or
any other regulatory comments to the rule,” Spartan contends,
“the preamble contains numerous references that the pumpers’
examination may be performed ‘in lieu of,’ rather than in
addition to, a pre-shift examination.” Resp’t Br. at 14.
Spartan’s introductory disclaimer signals the uphill climb it
faces in relying on the preamble, and the course indeed proves
too steep. The preamble does state, as Spartan notes, that
“either a preshift examination must be made in accordance with
paragraph (a)(1) before a pumper enters an area, or certified
pumpers must conduct an examination under paragraph (a)(2).”
Safety Standards for Underground Coal Mine Ventilation, 61
Fed. Reg. 9765, 9792 (Mar. 11, 1996) (“Safety Standards”)
(emphases added). But the Secretary reasonably construes this
alternative as applying only to the area the “pumper enters.”
Another sentence in the preamble confirms this construction:
“Paragraph (a)(2) of the final rule provides that preshift
examinations of areas where pumpers are scheduled to work or
travel are not required . . . .” Id. (emphasis added). Similarly,
although Spartan stresses the preamble’s statement that “the
pumper is conducting an examination in a limited area only for
himself or herself,” id.,2 the Secretary reasonably explains that
this language merely means that the pumpers’ examination is a
substitute for the preshift examination that would take place “in
the limited area” in which the pumper “himself or herself” is
2
See also Safety Standards, 61 Fed. Reg. at 9792 (“[T]he final
rule provides an option for pumpers to perform examinations for
themselves if they are certified.”); id. (“The pumper may only perform
an examination in lieu of a preshift for himself or herself.”).
9
working. It is not a substitute for the broader examination
otherwise required.3
Spartan also maintains that two subsections of the Mine
Act, 30 U.S.C. § 863(d) and § 863(m), “when reviewed
separately and together, clearly indicate that Congress did not
intend to require a pre-shift examination of an idle mine outside
the area where pumpers are working and traveling.” Resp’t Br.
at 16. Although our own review reveals no such negative
intent,4 examination of those sections is beside the point.
3
Spartan also notes the preamble’s statement that “areas where
persons are not scheduled to work or travel are not required to be
examined under the final rule.” Safety Standards, 61 Fed. Reg. at
9791. But as the Secretary points out, this statement was not a
reference to the pumpers’ exception, but rather a response to a specific
comment suggesting that only a limited preshift examination be
required when miners are “to work in the shaft, slope, drift, or . . .
bottom area.” Id. There is no indication that the statement was
intended to contradict the text of § 75.360 -- which requires
examination of “[a]reas where trolley wires or trolley feeder wires are
to be or will remain energized,” 30 C.F.R. § 75.360(b)(7), regardless
of whether anyone is scheduled to work there.
4
The language of subsection 863(d) is similar to that of 30 C.F.R.
§ 75.360 and does not undercut the Secretary’s interpretation of the
latter. See 30 U.S.C. § 863(d)(1) (“[B]efore any miner in [a] shift
enters the active workings of a coal mine, certified persons designated
by the operator of the mine shall examine such workings and any other
underground area of the mine designated by the Secretary or his
authorized representative.”); id. § 863(d)(2) (“No person (other than
certified persons designated under this subsection) shall enter any
underground area, except during any shift, unless an examination of
such area as prescribed in this subsection has been made within eight
hours immediately preceding his entrance into such area.”). The
language of § 863(m) is similar to that of the preamble and is likewise
reasonably subject to the Secretary’s construction. See id. § 863(m)
10
Congress made quite clear that “[t]he provisions of sections 862
through 878 of this title shall be interim mandatory safety
standards applicable to all underground coal mines until
superseded in whole or in part by improved mandatory safety
standards promulgated by the Secretary.” 30 U.S.C. § 861(a).
Whatever the import of those interim provisions, they have now
been superseded by the Secretary’s safety standards, including
§ 75.360.
Switching its attention from regulatory interpretation to
policy, Spartan further contends that the Secretary’s
“interpretation is not entitled to deference because it diminishes,
rather than promotes, safety.” Resp’t Br. at 10. That is so,
Spartan insists, because sending pre-shift examiners “to conduct
pre-shift examinations for areas far remote from those in which
the pumpers will work and travel . . . will unnecessarily expose
the preshift examiners to mine hazards, without measurably
improving the health and safety of the pumpers.” Id. at 20. The
company is certainly correct that sending preshift examiners as
well as pumpers into a mine exposes the examiners to hazards
they would not experience if the pumpers went in alone. But the
Secretary believes that the preshift examiners’ risk is minimized
by the fact that they, unlike the pumpers, are focused on a single
task: detecting and correcting hazards. And on the other side of
the ledger, the Secretary believes that sending in the examiners
protects pumpers from serious hazards -- particularly the risk of
fire triggered by energized trolley wires -- that can originate in
areas other than those in which the pumpers are working and
that are therefore beyond the scope of the pumpers’ own
examination. The Secretary’s balancing of these safety risks and
(providing that “[p]ersons, such as pumpmen, who are required
regularly to enter [idle and abandoned] areas in the performance of
their duties . . . are authorized to make such examinations for
themselves”).
11
benefits is a reasonable policy judgment to which this court must
defer. See Excel Mining, 334 F.3d at 11; Energy W. Mining, 40
F.3d at 463-64.
Finally, Spartan contends that, “even if the Secretary’s
interpretation was entitled to deference, the standard cannot be
enforced in this instance because Cannelton did not have fair
notice of the Secretary’s interpretation” as required by the Due
Process Clause. Resp’t Br. at 10. Spartan’s due process
argument falls short of the mark. This is not a case in which the
Secretary’s “interpretation is so far from a reasonable person’s
understanding of the regulations that they could not have
informed [Cannelton] of the agency’s perspective.” General
Elec. Co. v. EPA, 53 F.3d 1324, 1330 (D.C. Cir. 1995). To the
contrary, the regulation is “sufficiently clear to warn a party
about what is expected of it.” Id. at 1328; see Trinity Broad. of
Fla., Inc. v. FCC, 211 F.3d 618, 628 (D.C. Cir. 2000).
III
Because the Secretary of Labor’s interpretation of 30 C.F.R.
§ 75.360 is reasonable, FMSHRC’s contrary interpretation
cannot stand. We therefore vacate the decision below and
remand the case for further proceedings consistent with this
opinion. The petition for review is
Granted.